The opinion of the court was delivered by: Judge David H. Coar
MEMORANDUM OPINION AND ORDER
Maurice Holman ("Plaintiff") is suing his former employer, R. James Nicholson, the Secretary of Veterans Affairs ("Defendant"), for race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a),42 U.S.C. § 1981 ("Section 1981"), and 42 U.S.C. § 200e-16 et seq., and age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq. and 29 U.S.C. § 633 et seq. Plaintiff also a retaliation cause of action under Title VII. Before this court now is Defendant's Motion for Summary Judgment. For the reasons set forth below, Defendant's motion is GRANTED in its entirety.
I. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must set forth specific facts (a "scintilla of evidence" is insufficient) demonstrating that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 252; see also Celotex, 477 U.S. at 324. When reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Schuster v. Lucent Tech., Inc., 327 F.3d 569, 573 (7th Cir. 2003). This standard of review is applied to employment discrimination cases with "added rigor." Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993).
The following facts are largely undisputed; the Court will note where appropriate conflicting facts presented by the parties. Plaintiff is a 57 year-old African-American man. He began working for the Department of Veterans Affairs ("VA") medical center in Hines, Illinois, in 1985. Def.'s Local Rule 56.1 Statement ("DSOF") ¶ 1. In 1998, Plaintiff accepted a position as an Equal Employment Opportunity ("EEO") Counselor Trainee in the Hines VA Office of Resolution Management. He was promoted in 1999 to Counselor, and in 2001 to Counselor/Investigator. Id. at ¶ 2, Pl.'s Statement in Opposition to Def.'s Local Rule 56.1 Statement ("PSOF") ¶ 2, Compl. ¶ 14-15. As an EEO specialist, Plaintiff was responsible for counseling VA employees complaining of illegal employment discrimination, and for investigating their discrimination claims. DSOF ¶ 3.
In 2002, the Hines VA office merged with the Brecksville, Ohio VA office, and Tywanna Halsted became Plaintiff's field manager. Halstead is an African-American woman who is older than Plaintiff. DSOF ¶ 6. In July 2004, Plaintiff was placed on a Performance Improvement Plan ("PIP") for his unsatisfactory job performance. DSOF ¶ 4. In December 2004, Halstead proposed to demote Plaintiff to a lower-level EEO counselor position, allegedly due to his failure to perform at an acceptable level, but rescinded her letter of proposed demotion in February 2005. Between March 30, 2005, and June 17, 2005, Plaintiff sought EEO counseling concerning his PIP and possible demotion. DSOF ¶ 8. Nonetheless, Plaintiff was issued a second letter of proposed demotion in July 2005. DSOF ¶ 9. He filed a formal administrative complaint of discrimination on his proposed demotion, but then requested and accepted a voluntarily demotion from EEO specialist to EEO counselor on September 14, 2005. DSOF ¶ 10.
In March 2006, Plaintiff was issued two letters warning of his deficient performance as EEO counselor. DSOF ¶ 13. Plaintiff was then placed on a 90-day PIP that ended in May 2006. During those 90 days, Plaintiff received 32 hours of one-on-one EEO counselor training. DSOF ¶ 14-15. Despite these efforts, Plaintiff was issued a notice of proposed removal on November 14, 2006. DSOF ¶ 16. Plaintiff submitted a written response to the notice of proposed removal, which was considered by Rosa Franco, Chief Operating Officer of the VA's main Office of Resolution Management in Washington, DC. Franco issued a letter terminating Plaintiff's employment on January 26, 2007. DSOF ¶ 18. Plaintiff claims that upon arriving at work on January 26, 2007, he was arrested and escorted to the Hines VA Police office and was there issued his termination letter. He was then allegedly escorted by a police officer back to the VA office to gather his personal belongings, and then escorted off the VA premises. PSOF ¶ 56-58.
Plaintiff elected to appeal his termination to the Merit Systems Protection Board ("MSPB") on January 30, 2007.*fn1 DSOF ¶ 22. Plaintiff claimed in his MSPB appeal that the VA had discriminated against him on the basis of his race and gender. DSOF ¶ 24. On June 8, 2007, the MSPB issued an initial decision affirming the VA's decision to terminate Plaintiff for unacceptable performance as an EEO counselor, for, among other things, failing to correctly identify instances of discrimination, and failing to complete his work in a timely fashion. DSOF ¶ 26. The decision rejected Plaintiff's claims that his termination was motivated by a discriminatory purpose. DSOF ¶ 30. The MSPB administrative judge noted that Plaintiff had not presented any direct evidence of discrimination, but that he had argued in support of a circumstantial case of discrimination, that he was treated less favorably by three comparable employees, Bettye Brown (a Caucasian woman), Dawn Arps (and African-American woman), and Rafael Lobato-Martinez (a Hispanic man). DSOF ¶ 31. The judge found all three to be unsuitable comparators. DSOF ¶ 32-33. The judge found Brown to be an unsuitable comparator because she was employed in a different position with different duties than Plaintiff. Arps and Lobato-Martinez were unsuitable despite being employed in the same position as Plaintiff because their performances had improved while Plaintiff's had not. MSPB Decision 8-9, June 8, 2007. The MSPB decision became final on July 13, 2007. DSOF ¶ 29.
Plaintiff brings five causes of action against Defendant: for allegedly firing Plaintiff because of his age in violation of Title VII and the ADEA (Counts I and II), because of his race in violation of Title VII (Count III), and because of his gender in violation of Title VII (Count IV). Plaintiff's fifth cause of action alleges that Defendant retaliated against Plaintiff in violation of Title VII, 42 U.S.C. § 200f0e-3(a), because he opposed a discriminatory employment practice. Defendant seeks summary judgment on all of Plaintiff's claims.*fn2
A. Counts I, II, and V: Failure to Exhaust Administrative Remedies
Defendant argues that this court does not have jurisdiction to hear Plaintiff's age discrimination and retaliation claims, because he failed to raise these claims before the MSPB. Indeed, Plaintiff's January 30, 2007 appeal to the MSPB only raises charges of race and gender discrimination, not age discrimination or retaliation.
Federal employees who seek to assert Title VII claims must exhaust the administrative remedies available to them in a timely fashion before they ...